Commonwealth v. Rosario
Commonwealth v. Rosario
Opinion of the Court
This is the Commonwealth’s appeal from a judgment of sentence which departed downward from the sentencing guidelines. Following appellee’s conviction for the knowing possession and intent to distribute cocaine, she was sentenced to eleven and one-half (11V2) to twenty-three (23) months house arrest
On May 7, 1988, Philadelphia police received confidential information that a Hispanic female, known as “Lucy”, was conducting the aforesaid drug operation out of her 2840-2842 North Franklin Street homes. On the same date, undercover officers went to the vicinity of the houses and were approached by a Hispanic male exiting 2840. The unidentified male offered to sell them one-sixteenth of an ounce of cocaine. The unidentified male re-entered the 2842 home and returned with the cocaine and completed the illegal transaction. Based on this information, police exe
At trial, appellee introduced evidence attempting to infer that an unidentified man had been staying with her off and on for several months prior to the arrest. Appellee called Ms. Aurora Sosa and Larry Ulloa as defense witnesses. Sosa testified an unidentified man had been living or visiting with the appellee around the time of the search of her house (T.T., 5/31/89, pp. 57, 61). Ulloa stated, without identification or any specification, that a Hispanic male had been seen around the house at that time. Based on these scant assertions, appellee asked the court to go one step beyond and find that this phantom was her paramour, and had constructive possession of her house. On these inferences, the court was asked to infer the drugs and paraphernalia belonged to her unidentified friend.
Our studied review of the record satisfies us that there is a wealth of evidence to support the trial court’s finding appellee to be in constructive possession of the drugs and paraphernalia as well as to be operating a drug distribution operation out of her two North Franklin Street row homes. See Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). However, in contradiction to its own
THE COURT: Ms. Rosario?
THE DEFENDANT: All I can say about all the trouble I got into, it taught me a lot.
THE COURT: Was he your boyfriend?
THE DEFENDANT: He was a friend of mines.
THE COURT: A close friend?
THE DEFENDANT: Not actually a boyfriend, but we used to see each other from time to time.
MS. MC CAFFREY: She is getting a little confused.
THE COURT: That is all right.
THE COURT: Did he live with you?
THE DEFENDANT: Yes, he was staying with me.
THE COURT: He stayed in the same bedroom with you?
THE DEFENDANT: Yes.
THE COURT: That is where the stuff was found, in the bedroom?
THE DEFENDANT: Yes.
THE COURT: You knew he was selling stuff, am I correct?
THE DEFENDANT: Yes, but—
THE COURT: Don’t lie to me.
THE DEFENDANT: I’m not lying.
THE COURT: You knew he was selling the stuff?
*509 THE DEFENDANT: I worked two jobs. I don’t use drugs.
THE COURT: That is not the question. My question was, you knew he was selling drugs?
THE DEFENDANT: I didn’t know he had it in my house.
THE COURT: Where did you think he had it?
THE DEFENDANT: I thought he wouldn’t dare to do that in my home.
THE COURT: Where would he be doing it at, 2842, the house next door?
THE DEFENDANT: Yes.
THE COURT: Who lived in the house next door?
THE DEFENDANT: His friend.
THE COURT: You knew his friend was selling drugs?
THE DEFENDANT: There is a lot of things I know in the block, but I don’t get involved in that. I didn’t know he was bringing that stuff into my home.
(S.T., 5/31/89, pp. 7-9.) The dialogue showed the appellant to be inconsistent and defensive but established her guilty knowledge of the enterprise.
The judge’s determination must not be disturbed absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence on the record, discretion is abused. Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984).
It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent the legislature has provided a thorough though not exhaustive outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a
Applying the abuse of discretion standard to the instant facts, we find the trial court erred. The evidence of record simply does not support the sentencing court’s finding. As indicated by her testimony, appellee not only denied involvement in the drug operation but also denied full knowledge of the drugs presence in her home. However, by finding appellee guilty of the crimes charged, the court necessarily found appellee to have possessed the cocaine with the requisite intent to distribute. At sentencing, the trial court impermissibly disregarded this adjudicated fact and improperly sentenced appellee to house arrest for a period of time far less than the suggested mitigated minimum time for incarceration. The trial court reasoned appellant had technically possessed the cocaine only by virtue of owning the house in which the drug operation was conducted, and by permitting herself to be ruled by her overbearing, live-in, drug dealing paramour. The sentencing court stated:
The court took into consideration that the defendant’s actions were peripheral, meaning that while she was not involved directly in the selling of the drugs, she was fully cognizant of the fact that drugs were around and she allowed them to be around in her house. The court did not believe that she was involved in the actual selling of drugs.
(Slip Op., Defino, J., 1/22/90, p. 3.)
If the rationale advanced by the sentencing court is correct, then the appellee should not have been convicted of
We hold that once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence. Thus, the question of whether or not defendant was an innocent observer to the crimes committed in her house by someone else, was fully, fairly and finally decided against her at the time of trial. The sentencing court is not empowered to rewrite the script and cast defendant as a woman who merely owned a house in which the illegal activities for which she was convicted were actually being perpetrated by someone else. The sentencing court’s findings contradict the adjudicated facts which are necessary to the trial court’s arriving at a basis for its guilty finding. Therefore, the court abused its discretion when it departed below the guideline range and imposed a sentence of HV2 to 23 months house arrest for running a cocaine distributorship. The destructive character of such activity to the well being of society is so well documented as not to require further documentation here. To ignore the provisions established by law for controlling and hopefully deterring such behavior brings the judicial process into question and undermines the confidence of society in the judiciary, while bringing solace and encouragement to the drug peddlers.
Jurisdiction relinquished.
. The trial court did not specify conditions or restrictions on appellee’s movement, but rather relinquished that duty to the discretion of the probation department's intensive supervision program. The court did find drug treatment with random urine analysis necessary as a condition of the sentence.
. Neither Sosa nor Ulloa testified that the unidentified man was a boyfriend or lover. The sentencing court made this finding on its own. In fact, Ulloa testified that the man was a renter whereas Sosa stated that she did not "know nothing about [appellee’s] personal life.” (T.T., 3/31/89, p. 61.)
. With appellant’s prior record score of two and an offense gravity score of "E” for an offense under subsection (a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act and involving over two grams of cocaine (here, 29 grams), the sentencing guidelines Eire as follows: mitigated, 21-27 months; standard, 27-39 months; and aggravated, 39-45 months. 204 Pa.Code Ch. 303, § 303.9.
. We note that appellee, in apparent satisfaction with the sentence entered in the trial court, did not consider it necessary to file an appellate brief with this Court.
Dissenting Opinion
dissenting.
I must respectfully dissent.
I begin by noting that no brief has been filed on behalf of the appellee. Court records indicate that all efforts of the prothonotary of this court and the Commonwealth to contact appellee’s attorney of record have failed, and apparently the appellee herself is unaware of the whereabouts of her attorney. As such, I can only conclude that counsel has abandoned representation of her client.
In doing so, counsel for the appellee has failed to comply with the requirements regarding withdrawal of counsel as set forth historically in Commonwealth v. Palmer, 455 Pa. 111, 314 A.2d 853 (1974), and no waiver of the right to counsel has been shown, as required by Commonwealth v. Collins, 295 Pa.Super. 380, 383, 441 A.2d 1283, 1284 (1982) (citations omitted).
Additionally, even if this were a collateral appeal which did not involve the strict requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) rehrg. denied at 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377, we would be required to review counsel's explanation of a no-merit letter if one were submitted. See Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
My review of the extraordinary posture of this appeal leads me to conclude that the abandonment of representation of the appellee has worked to her serious prejudice. I would therefore hold that this case must be remanded for the appointment of counsel or to allow appellee to hire new counsel if she is in a position to do so. In so concluding, I note that the Commonwealth in this matter has filed an appeal and even though there is no appellee’s brief, sought and obtained permission to present a “reply brief”. More
Secondly, I note that the majority disposition fails to give due deference to the mandates of Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). See also Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989).
Finally, appellate counsel could argue the effect of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), since this is an appeal from the discretionary aspect of sentencing. Our court has not hesitated to dismiss such appeals when they fail to state substantial grounds for consideration of the appeal. See, e.g., Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593 (1990), and Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990).
Since I feel that the majority disposition seriously compromises the appellee’s rights I would remand for a hearing on representation and with directions to provide for counsel under the proper circumstances.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Aida L. ROSARIO
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- 8 cases
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- Published